People v. Cook

Upon the trial of the defendant his counsel, by objections and exceptions to the rulings made by the court, raised the question that the defendant could not be legally convicted of the crime of violating the Liquor Tax Law because that law had been superseded and nullified by the adoption of the Eighteenth Amendment to the Constitution of the United States and the enactment of the National Prohibition Act (41 U. S. Stat. at Large, 305, chap. 83), being the act of October 28, 1919, known as the Volstead Act.

The first two sections of the Eighteenth Amendment read as follows:

“ Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

“ Sec. 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.” (40 U. S. Stat. at Large, 1941, 1942.) That amendment was ratified on January 29, 1919.

phrase ‘ intoxicating liquor ’ shall he construed to include alcohol, brandy, whisky, rum, gin, beer, ale, porter, and wine, and in addition thereto any spirituous, vinous, malt, or fermented liquor, liquids, and compounds, whether medicated, proprietary, patented, or not, and by whatever name called, containing one-half of 1 per centum or more of alcohol by volume which are fit for use for beverage purposes.” (41 U. S. Stat. at Large, 307, tit. 2, § 1.)

By section 3 of the same title it is provided that “lo person shall on or after the date when the Eighteenth Amendment to the Constitution of the United States goes into effect, manufacture, sell, barter, transport, import, export, deliver, furnish or possess any intoxicating liquor except as authorized in this act, and all the provisions of this act shall be liberally construed to the end that the use of intoxicating liquor as a beverage may be prevented.” (41 U. S. Stat. at Large, 308, tit. 2, § 3.) Section 29 of the same title of the act provides the penalties for the violation thereof. (41 U. S. Stat. at Large, 316, tit. 2, § 29.)

After the enactment of the Volstead Act, this State, by chapter 911 of the Laws of 1920, amended the State Liquor Tax Law (Consol. Laws, chap. 34). The evident intent of said amendment was to permit the sale by the holder of a liquor tax certificate of liquor containing not more than two and seventy-five hundredths per centum of alcohol by weight to be used for beverage purposes, under certain conditions and restrictions as provided in the act. The term “ liquors ” was defined in said act as containing “ At least one-half of one per centum of alcohol by weight.” “ Intoxicating liquors ” were defined in said act as those containing more than two and seventy-five hundredths per centum of alcohol by weight and “ non-intoxicating beverages ” as liquors containing not more than two and seventy-five hundredths per centum of alcohol by

There were, therefore, in existence at the same time two acts, the State Liquor Tax Law and the Volstead Act. The State act purported to make it lawful under certain conditions and restrictions for persons who had paid the liquor tax to traffic in liquor containing at least one-half of one per centum and not over two and seventy-five hundredths per centum of alcohol by weight, and the Volstead Act made it unlawful to traffic in liquor containing one-half of one per centum or more of alcohol by volume. In view of that situation, can it he held that the State act was a valid act, and that a violation of its provisions constituted a crime ?

Prior to the enactment of the Eighteenth Amendment the regulation of the manufacture and sale of intoxicating liquors, apart from the interstate commerce regulations, was exercised exclusively by the States under the general police powers. (Mugler v. Kansas, 123 U. S. 623 , 31 Law. Ed. 205 ; Matter of Rahrer, 140 U. S. 545 ; sub nom. Wilkerson v. Rahrer, 35 Law. Ed. 572 ; Purity Extract Co. v. Lynch, 226 U. S. 192 , 57 Law. Ed. 184 ; Hamilton v. Kentucky Distilleries Co., 251 U. S. 146 , 156, 64 Law. Ed. 194 .)

The federal government is one of delegated powers. (United States v. Cruikshank, 92 U. S. 542 .)

“ The powers not delegated to the United States by the

Does the fact that the federal government has enacted the Volstead Act, in pursuance of the provisions of the Eighteenth Amendment, deprive the States of the reserved police power which they formerly possessed, and prevent them from legislating for the prohibition of the sale of intoxicating liquors? If not, can the State Liquor Tax Law he held to he “ appropriate legislation ” to enforce the Eighteenth Amendment within the meaning of section 2 thereof, which provides: “ The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.”

The case of Rhode Island v. Palmer ( 253 U. S. 350 , 64 Law. Ed. 946 ) makes it clear that such parts of the State Liquor Tax Law as purport to legalize the sale of liquors containing one-half of one per centum or more of alcohol by volume by persons who have paid a liquor tax are abrogated and inoperative because repugnant to the provisions of the Eighteenth Amendment, as construed by the Supreme Court of the United States in said case, where it is said in conclusions 6 and 7 of the opinion;

“ 6. The first section of the Amendment — the one embodying the prohibition — is operative throughout the entire territorial limits of the United States, binds all legislative bodies, courts, public officers and individuals within those limits, and of its own force invalidates every legislative act — whether by Congress, by a State Legislature, or by a territorial assembly— which authorizes or sanctions what the section prohibits. 7. The second section of the Amendment — the one declaring ' The

The Eighteenth Amendment, however, does not purport to grant to Congress the exclusive power to legislate upon the question of traffic in intoxicating liquors. It grants to Congress only “ concurrent power ” and does not by its terms deprive the States of their reserved police power to prohibit such traffic. The words of the section are clear: “ The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.” The States have, therefore, the same power which they had before the passage of the Eighteenth Amendment to prohibit traffic in intoxicating liquors and Congress has the added power given by such amendment. The power of the State to legislate on the subject is limited by the second section of the amendment to the passage of “ appropriate legislation ” to enforce such amendment and they cannot legally enact laws repugnant to those enacted by Congress upon the subject. State laws thereon, in so far as they conflict with and are repugnant to the Volstead Act are abrogated and nullified by that act, but in so far as they are “ appropriate legislation ” to enforce the said Eighteenth Amendment they are legal and enforcible. In the case of Commonwealth v. Nickerson ( 128 N. E. Rep. 273 ) the Supreme Court of Massachusetts said: “We are of opinion that the word * concurrent ’ in this connection means a power continuously existing for efficacious ends to be exerted in support of the main object of the amendment and making contribution to the same general aim according to the needs of the State, even though Congress also has exerted the power reposed in it by the amendment by enacting enforcing legislation operative throughout the extent of its territory. Legislation by the States need not be identical with that of Congress. It cannot authorize that which is forbidden by Congress. But

The following cases enunciate the same principle: Ex parte Guerra (— Vt. —, 110 Atl. Rep. 224 ) ; Jones v. Hicks (— Ga. —, 104 S. E. Rep. 771 ) ; Scroggs v. State (— Ga. —, 105 S. E. Rep. 363 ) ; State v. Fore ( 180 N. C. 744 , 105 S. E. Rep. 334 ) ; City of Shreveport v. Marx (— La. —, 86 So. Rep. 602 ) ; State ex rel. Stranahan v. District Court ( 58 Mont. 684 , 194 Pac. Eep. 308) ; Allen v. Commonwealth (— Va. —, 105 S. E. Rep. 589 ) ; Ex parte Crookshank ( 269 Fed. Rep. 080 ) ; Franklin v. State (— Tex. Crim. —, 227 S. W. Rep. 486 ); Woods v. City of Seattle ( 270 Fed. Rep. 315 ) ; United States v. Peterson (268 id. 864) ; Ex parte Ramsey (265 id.

That opinion referred to a State statute which was in force when the Eighteenth Amendment was adopted, but I think the same principle applies to the statute in question in the case at bar. That statute prohibits the traffic in intoxicating liquors unless a liquor tax is paid and a certificate issued. The provision permitting such traffic upon payment of a tax is void, but the provision making it a crime to traffic therein remains in force.

It is a familiar principle that a statute may be unconstitutional in part and valid in part, if the parts which are void can be separated from those which are valid. (Presser v. Illinois, 116 U. S. 252 ; People ex rel. Devery v. Coler, 173 N. Y. 103 .) I think that the statute in question can be so separated, and

The fact that different penalties ave provided in the State statute and in the Volstead Act does not make the State statute void. (Commonwealth v. Nickerson, supra; Ex parte Crookshank, supra.)

If, however, the amendment of the Liquor Tax Law in question should be held to be unconstitutional and void, still the defendant was legally convicted. He was charged in the indictment with a violation of the Liquor Tax Law. The Liquor Tax Law of the State was amended by the amendment in question in 1920. If that amendment is unconstitutional and void, the Liquor Tax Law as it stood before that amendment is in force and operation, and the defendant was properly convicted thereunder. (People ex rel. Farrington v. Mensching, 187 N. Y. .8.) The indictment was properly found against the defendant — the court had authority to permit the amendment substituting the name of the defendant in place of the fictitious name contained in the indictment.

The judgment of conviction should he affirmed.

All concur.

Judgment of conviction affirmed.